Citation Nr: 22015997 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 15-40 487 DATE: March 21, 2022 REMANDED Service connection for a lung condition (to include bronchiectasis, COPD, emphysema, and chronic bronchitis, but not to include pleural thickening and pleural plaque formation associated with asbestos exposure) is remanded. REASONS FOR REMAND The Veteran honorably served on active duty from December 1967 to October 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2016 Board hearing, the Veteran testified before the undersigned; a transcript of the hearing is of record. In August 2018, August 2020, and May 2021, the Board remanded the Veteran's claim for further development. The Board takes pause here to express its sincere and deep condolences to the Appellant for the recent passing of the Veteran and VA's sincere appreciation for his honorable service to America. The Board notes the docketing letter send to the Appellant inverted her name, but a new letter has been sent and the name has been corrected. In July 2021, VA received Appellant's request for substitution as claimant upon the death of the Veteran, which the RO granted in November 2021. [TO THE APPELLANT: The Board notes that an October 2021 VA examiner opined that the Veteran's cancer was at least as likely as not related to the Veteran's lung condition, which might, for example, implicate benefits based on Dependency and Indemnity Compensation (DIC) based on service connection for cause of death.] 1. Service connection for a lung condition (to include bronchiectasis, COPD, emphysema, and chronic bronchitis, but not to include pleural thickening and pleural plaque formation associated with asbestos exposure) is remanded. Despite the additional and regrettable delay, a remand is required because there was not substantial compliance with the Board's May 2021 remand directive to provide the Veteran an adequate VA examination. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, although the examiner made diligent efforts to provide an adequate opinion, many of the questions presented in the prior remand were not answered in the July 2021, November 2021, or October 2021 VA examinations. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (whenever VA provides an examination or obtains a medical opinion, it must ensure that the examination or opinion is adequate). Accordingly, a remand is required. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. The Board recognizes that the complex and intertwined nature of the medical questions involved requires significant work on the part of the medical examiner and the AOJ and regrets the need to remand the case to the AOJ. However, the Board is unable to adjudicate the claims until the requested information is provided. Therefore, the Board must ask the VA examiners and the AOJ to ensure compliance with the following directives (that is, full and thoroughly explained answers to each of the questions) to avoid additional delays in adjudication. 2. Provide the complete record to an appropriate clinician with expertise in pulmonary or respiratory diseases and conditions and obtain an addendum opinion. The clinician MUST indicate that she or he has reviewed the entire record. Based on the factual evidence of record, the clinician must provide an opinion that responds to the following: (a.) For the purposes of these medical opinions, the examiner can assume that the Veteran has current diagnoses of COPD, chronic bronchitis, bronchiectasis and emphysema. (b.) For the purposes of these medical opinions, the examiner is informed that the Veteran has conceded exposure to asbestos in service. (c.) For EACH of the Veteran's DIAGNOSED lung disabilities, is it nearly equally likely that it was incurred in military service, to include as a result of exposure to asbestos, dust, bilge water, and smoke? (d.) For EACH of the Veteran's DIAGNOSED lung disabilities, is it nearly equally likely that it was proximately caused by or aggravated by the Veteran's service-connected pleural thickening and/or pleural plaque formation? [The clinician is advised that AGGRAVATION is defined as any increase in severity of the disability beyond its natural progression, regardless of measurability OR permanence.] (e.) SPECIFICALLY, does pleural thickening or pleural plaques contribute ANY increase in severity beyond its natural progression, regardless of how small or incremental such increase could be, to the Veteran's symptoms of difficulty breathing and other symptoms associated with his conditions? (f.) IF the answer to 2.(e) is YES, does this indicate that the Veteran's service-connected pleural thickening or pleural plaques (caused by asbestos exposure in service) causes some increase in the severity of his symptoms associated with COPD, chronic bronchitis, bronchiectasis and/or emphysema? In other words, does the Veteran's pleural thickening or pleural plaques make the other conditions worse or are there overlapping symptoms? If the examiner cannot provide answers because further information, examination of the Veteran, or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies or testing should be exhausted before concluding that the answer cannot be provided. The examiner's attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the Veteran's claims folder): (g.) A September 1967 pre-induction naval examination reveals no notation of a lung or chest abnormality. (h.) A January 1968 service treatment note where the Veteran reported trouble breathing with a coughing spell, but that he did not feel sick. Diagnosis was an upper respiratory infection with bronchitis. (i.) An August 1970 service treatment note where the Veteran reported pain with deep breathing for two weeks with no other symptoms. Consultation report notes increased fibrosis in his chest. (j.) A September 1970 service treatment note where the Veteran reported pain in the left chest area for approximately one month. Notation includes "old gran. Disease -? asthma." (k.) A May 1971 service treatment note where the Veteran reported painful inspiration with a hard time breathing. Notation includes "chronic changes and evidence 'Nd' granulomatous disease." (l.) An October 1971 service release examination reveals no notation of a lung or chest abnormality. (m.) The Veteran has reported difficulty breathing beginning at least as early in 2010. [The Board notes that, by law, an extensive time gap between service and initial diagnosis is but one factor to consider.] (n.) An October 2021 VA examination that stated the Veteran's death is at least as likely as not due to his service-connected lung condition. The examiner is advised that, BY LAW, the particular facts and circumstances of the Veteran's case (i.e., his particular medical condition and circumstances) must be addressed. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the clinician (that is, the clinician does not have the required knowledge or training). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.